We cannot uphold the trial court’s commitment order where the condition for release requires DIBC to “fully” comply with the February 1, 2010, order as it failed to identify “the act or duty” which must be performed before the incarceration may be terminated. MCL 600.1715(2). While appellants may have the present immediate ability to commence and continue construction, they do not have the present immediate ability to actually finish the construction in accordance with the directives set forth in the February 1, 2010, opinion and order for a period of six to twelve months. Therefore, the condition does not permit appellants to use the keys to obtain their release until the project is completed, or, in other words, “to avoid the sentence” and purge the contempt. Our decision does not preclude further civil contempt sanctions, including imprisonment that was similar to the one imposed by the trial court in January 2011. However, we leave this decision to discretion of the trial court to identify the act or duty appellants will be required to perform, that will coerce the initiation and continuation of compliance with the February 1, 2010, order within the confines of the case law and the statute for civil contempt sanctions.

I wrote a story for next week’s Michigan Lawyers Weekly about the Court of Appeals decision in McCracken v City of Detroit. The issue in the case was whether the plaintiff has to comply with the defendant’s demand for a response to affirmative defenses.

In that case, the Court of Appeals said no, a response is optional and the penalty for not complying with the demand is that the defenses are assumed to be denied. The court decided not to follow a previous case from 1968, Vannoy v City of Warren, using the ol’ “it’s not binding because it’s from before 11/1/1990.” (Someone will have to explain to me why that court rule exists and if we are the only state that has one like it. It seems like it’s there so the current court can cherry pick which precedents it opts to keep without offering a valid explanation as to why the old precedent is irrelevant/outdated/etc.)

The unanimous published decision was released on February 8. The judges were Henry Saad, Douglas Shapiro and Kirsten Frank Kelly.

What’s interesting is that just two weeks earlier, the same court ruled the exact opposite in a different case. (By “the same court” I mean the Court of Appeals, not necessarily the same judges).

In Donaldson v Department of Agriculture, a FOIA dispute, the court followed Vannoy and ruled the trial court properly dismissed the plaintiff’s case because he didn’t reply to the state’s demand for answers to affirmative defenses. That decision, also unanimous, was unpublished and not discussed at all in the McCracken opinion. The judges were Patrick Meter, Michael J. Kelly and Amy Ronayne Krause.

That kind of indecision results in this: yet one more opinion, Prins v Michigan State Police, filed just this morning. The facts are virtually identical to Donaldson in that it’s a FOIA case in which the plaintiff didn’t respond to the state’s demand for answers to the affirmative defenses. The difference? The opinion was filed three weeks after Donaldson:

We lastly note the state police’s appellate contention that the circuit court should have granted summary disposition on an alternate ground. The state police maintain that Prins did not timely respond to its demand for a reply to the affirmative defenses set forth in its answer, as mandated by MCR 2.110(B)(5). According to the state police, the circuit court should have deemed the affirmative defenses admitted. However, we reject the state police’s reading of the relevant court rules, on the basis of the following pertinent analysis of this Court in McCracken v Detroit, ___ Mich App ___; ___ NW2d ___ (Docket No. 294218, issued 2/8/11), slip op at 4-5 …

Same dispute, same procedural facts, three weeks apart, and completely different results. The lesson is that timing is everything, I guess.

Question for You, The Reader: Has this defense strategy become an epidemic? Was the panel in McCracken reacting to an overabundance of appeals on this issue?

DETROIT (AP) — If someone dies from inhaling exhaust in a garage, is it the fault of the companies that make or market a muffler-repair kit?

The family of a deceased Livingston County man thinks so. The Michigan appeals court has reinstated a lawsuit that claims the repair kit should have carried a warning about the dangers of carbon monoxide.

Craig White died in 2005 while working on his Buick. His family says companies associated with the product had a duty to warn that cars should not be run in a closed space.

A Livingston County judge ruled against the family in 2008, but the appeals court, in a 2-1 decision, sent the lawsuit back for more work this week.

The majority says there wasn’t enough evidence in the record to dismiss the case. The dissenting judge says White was knowledgeable about engines.

The per curiam decision can be found here, and the dissent from Judge Kirsten Frank Kelly is here.

“[M]any voters may wish to avoid the perceived annoyance and hassle of receiving large amounts of junk mail and solicitations that would result from the disclosure of their particular political convictions.”

Whitbeck and Kelly were discussing the competing rationales for and against Freedom of Information Act disclosure of voters’ names, addresses and the political parties’ ballot the voters requested in the 2008 presidential primary.

Joined by Judge Stephen L. Borrello, Whitbeck prevailed on his view that disclosure was necessary to make sure that election officials had complied with a now-unconstitutional statute.

The law required the Secretary of State and other election officials to collect voter information in the 2008 primary and supply it exclusively to the state’s two major political parties.

A political consulting company made a FOIA request for the same information and prevailed in last week’s split-panel decision.

***“[A] defendant’s perjury at trial is not exceptional. If it were, ‘a departure might be warranted every time a defendant testified and was found guilty.’”

The panel explained that a defendant’s admitted perjury is not reason enough to exceed the sentencing guidelines.

However, in this case, the trial court found that the defendant was a pedophile. The Baker panel said that was a great reason to ignore the guideline’s 9- to 15-year recommendation instead impose a 25- to 75-year sentence.

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